Prop 8 Decision: Ninth Circuit Rules Same-Sex Marriage Proposition Unconstitutional

The Ninth Circuit has ruled 2-1 in the long-awaited sex-sex marriage case and affirmed the lower court in finding the law unconstitutional. Eighteen months ago former Chief U.S. District Judge Vaughn Walker struck down the ban on same-sex marriage. Judge Stephen Reinhardt wrote the lengthy opinion below upholding Walker and striking down the law. The Court ruled that “[b]y using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the People of California violated the Equal Protection Clause.”

The ruling can now be appealed to the Supreme Court, but it is likely to be first appealed to the full en banc court of appeals.

The three-judge panel is composed of Reinhardt, an appointee of former President Carter; Michael Daly Hawkins, an appointee of former President Clinton; and N. Randy Smith, appointed by former President George W. Bush. During oral argument, the questions appeared to favor those challenging Proposition 8. The panel, however, did raise procedural concerns.

Walker’s status as a gay man in a same-sex relationship became part of the appeal with Proposition 8 backers arguing that he had a potential conflict-of-interest. They insist that he did not properly reveal his relationship before declaring Proposition 8 unconstitutional in August 2010. On April 6, 2011, Walker disclosed that he is gay and has been in a relationship with a male doctor for about ten years.

The panel held “Proposition 8 served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in California.”

The court notably found standing for the parties to sue — a major question in the case. Even in his partial dissent, Smith still agrees with the majority that the parties had standing and that the motion to vacate should be denied. However, he believes the law satisfied the rational basis test and should have been upheld.

I expect an en banc challenge in the case, particularly with a divided panel decision.

Both opinions are well-reasoned, though I agree with the majority. Reinhardt is viewed as one of the most liberal judges in the country and he seems an attractive foil for some of the conservative justices. Many have said that in the past these justices appeared to be gunning for the Ninth Circuit and particularly Reinhardt. Justices like Scalia are likely to favor cert in the case. However, it is to the advantage of the challengers to try their hand at the en banc first. There is always the danger that one of the four most reliable conservative justices might not want to take the risk of granting cert. As it stands, this is precedent controlling only in the Ninth Circuit.

The matter could not be more central to a nation built on both the rule of law and pluralistic values. If discriminatory views are enough to satisfy the rational basis test, a host of insular minorities would face majoritarian harassment and abuse. Quoting an earlier Supreme Court ruling in Moreno, the court ruled that “[j]ust as a ‘desire to harm . . . cannot While race and religion trigger strict scrutiny, sexual preference is not treated as a suspect classification for the purposes of the constitute a legitimate governmental interest,’ . . . neither can a more basic disapproval of a class of people.”

Here is the opinion: Prop 8 ruling

Source: LA Times

40 thoughts on “Prop 8 Decision: Ninth Circuit Rules Same-Sex Marriage Proposition Unconstitutional

  1. But raff, since it’s a Ninth Circuit decision, somebody’s gonna take it to the Supremes, and maybe that’s where it needs to be. Cousin in NM and her (now) bride (??), had to go to Gotham to get hitched.

  2. The Prof. fingers must be flying today, because a “…sex-sex marriage case…” sounds wild.

    Good on the 9th Circuit. Its still sad that Prop 8 ever passed in the first place, though.

  3. Yeah, that title is a bit confusing, to say the least. Might want to take a look at that. It really caused me to double take as I started to read this post.

  4. I guess my Governor(Christie) is breathing a sigh of relief,hes been looking for wiggle room on this matter:

    After he came up with this doozey:

    “Jan. 31 (Bloomberg) — Representative John Lewis, a veteran of the U.S. civil-rights movement, joined New Jersey Democrats criticizing Governor Chris Christie after he said blacks in the 1960s would have preferred referendums on desegregation — a move he has backed for same-sex marriage. A day later, Christie apologized.”

  5. Blouise, The Mormons lose again even with Romney’s money. He gave more to them than he paid in taxes. We know how they used the money in California. Great news for California!!!!!

  6. Blouise, I read somewhere that a religious alliance was forming for the fall elections – evangelicals, conservative catholics and mormons.

  7. evangelicals, conservative catholics and mormons … “Misery acquaints a man with strange bedfellows.” (Shakespeare)

  8. Yeah, you know the wingnuts will be tending the fires on this story and the very, very ebil, 9th will be full of activist judges once again.

    Gotta do somthing to fire up the base given the clown car of losers they have to choose from for the top of their ticket this fall.

  9. Nice….but after all it is the Ninth….It will be Appealed to a Full En Banc Panel….The Sct probably will not want to touch this….

  10. Please keep in the back of your minds, that for every loud-mouthed, righteously indignant, Christian Conservative you see out there, that the real fundamentalists, THE REAL FUNDAMENTALISTS, mind you (who represent the vast majority of Christians), are bound by one rule, and one rule only: “To love one’s fellow man/woman, as one would love one’s self; and to do unto them, as they would have others do to them.”

    The rest is just details…

  11. raff – That’ll be between him and his Maker.

    However, sitting on this earthly realm, I say that if left to his own devices, he might screw 300 million of us (+/- 2 or 3) bareback and dry, leaving us to suffer the consequences.

    That’s a lot of “political adultery”.

  12. OMG! I have been praying about this for years. Why is God testing me by refusing to enshrine my belief that marriage should remain between one man and his chattel? My only hope now is that Israel and the US will attack Iran and start Armageddon. That way we Christians can restore the dome of the rock and finally be raptured! Maybe that is why God did this– so the US and Israel can bring about Armageddon, yes, that’s probably it!

    In the meantime I just upped my earthquake, flood, fire and hurricane insurance. I’ve laid in water, jerky, ammo and booked my Disney wedding before all the princess coaches are reserved for “those people”!

    Seriously, this is great news. Congratulations to all!

  13. Very happy to see this. Between ridding the Susan Komen organization from the clutches of fundamentalist banality (it’s simply never a good idea to piss off women) and this decision it’s been a good start to the week. Perhaps at some point the fundamentalists and Republicans in general will get the messages that:

    A) The people of the United States of America DO NOT agree with their repressive agenda

    B) Such repression DOES NOT represent the fundamental American values of equality and personal freedoms.

  14. “I read somewhere that a religious alliance was forming for the fall elections” (SwM)


    The more I think about it … that might account for McFadden’s likening American Public Schools to something Hitler would like and his remarks following closely on the heels of other priests and Bishops calling for Catholics to ignore the law regarding healthcare. Couple that with the Mormon led fight against same sex marriage and you have the grand Teabagger Trifecta … Godless Education, Obamacare, and Homosexuals. We’ll wait to see if the Evangelicals come out with more on the “Atheists Hate and Are Trying to Destroy America” theme for that could be the final piece of the Four Point Attack.

  15. Can you imagine the divorce court proceedings in the years to come when these same sexers decide to untie the knot. The rants in the hallways will be humorous at first but rough on the security guards who have to overhear the ruffage.

  16. Good for the court. The state has no business defining contract terms between consenting adults on the matter of marriage.

  17. I have perused the opinion and believe that we should not read too much into it. It is important to keep in mind that the Ninth Circuit was dealing with the elimination of a right which had previously been guaranteed under the California constitution. Thus the issue as framed was whether the enactment of Proposition 8 violated the Due Process and Equal Protection provisions of the Fourteenth Amendment by eliminating a constitutional right for a narrowly defined class of individuals without a rational basis or in furtherance of a legitimate governmental interest. The court made it clear that it was not addressing the issue of whether gays have a fundamental constitutional right to marry. Thus the ruling has no application to those states which have never recognized same-sex marriages.

    That being said, it is still a remarkable victory.

  18. Mike Appleton,
    In my ignorance please help:
    What is the law or something that provides for acceptance of ceremonies approved in one state to be recognized and be accorded the ensuing rights in other states? (Folks sneaked over to SC from NC to get early marriages at 15 years attained)

  19. idealist707:

    I think you’re probably referring to the Full Faith and Credit Clause (Article IV, Section 1) in the Constitution.

  20. Idealist707 my parents were 1st cousins. Zt was illegal to get married in Pa so they went to NY . (Think it was that wayand not vice versa) andno one has ever questoned it. May be good examples for reciprocity for other marriges illegal in one state and not another.

    (As for Romney I think his tithing was in hopes of being forgiven for all his political lies. )

  21. Latest on the same sex marriage matter in New Mexico. In Santa Fe, New Mexico, where Antonio Darden, long time hair stylist for New Mexico Governor Susana Martinez, refused to cut the governor’s hair due to her opposition to same-sex marriage. This was not a passing decision on his part, because from the accounts I have read, she is now banned from his shop.

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